Samaradiwakara Et Al V. De Saram Et Al.

[Privy Council.]

Present: Lord Shaw, Lord Mersey, Lord De Villiers,    July.21,1911
and Lord Robson.

SAMARADIWAKARA et al. v. DE SARAM et al.

D. C. Colombo, 26,602.

Joint will-Fidei commissum-Usufruct-Widow is " lawful heir."

The joint will of James Alwis and his wife Florence, who were married in community of property, provided that, in the event of the testatrix surviving the testator, certain properties should vest in the testatrix subject to the conditions, inter alia, that the testatrix should not have the power to sell or otherwise alienate the same, but should have a life interest therein. Upon the death of the survivor the property was to vest in Edwin Robert. Edwin Robert survived the testator, but predeceased the testatrix.

Held, that on the death of the testator the dominium of the properties passed to Edwin Robert, subject to a life interest in favour of the testatrix.

The joint will further provided that with respect to certain specified properties that they should not be sold, or in anywise alienated or encumbered, but that they should devolve respectively on the " lawful heirs " of the devisees.

Held, that the widow of a devisee was a lawful heir by virtue of section 26 of Ordinance No. 15 of 1876.

APPEAL from a judgment of the Supreme Court of Ceylon (see 13 N. L. R. 353).

Dornhorst, K.C. and De Gruyther, K.C. (with them R. W. Lee), for De Saram et al.

Lawrence, K.C. (with him H. E. Miller), for Samardiwakara et al.

July 21, 1911. Delivered by Lord De Villiers: -

The main question to be decided in this appeal is whether on his death, which took place in 1882, Edwin Alwis had acquired such an interest in certain requests made to him by the joint will of his parents as was capable of being and was transmitted to his heirs. The will was made on April 27,1878, by James and Florence Alwis. who were married in community of property. It contained several clauses under distinct headings. By the 6th clause, under the heading "Ad interim provision for the children," requests of movable and immovable property were made to several of the testators'

children upon their respectively marrying or attaining the age of twenty-five years. By the 7th clause, under the heading " Provision for the testatrix is she survive the testator," the testators declare: " It is our will and desire that all the above movable property as above settled, and all the immovable property until they shall be transferred as above directed, and the other following lands and houses, shall be vested in me, the testatrix, subject to the undermentioned conditions." Then follows a list of such lands and houses, the third on the list being the " Synagogue " in Colpetty, and the fourth being " Barandeniya Cottage " in Colpetty. The testators then direct as follows: " Our executors shall not sell or otherwise alienate the first sixteen lands and premises hereinbefore mentioned (including the ' Synagogue ' and Cottage), nor shall I, the testatrix, have the power to sell or otherwise alienate the same or any of them, but I shall have a life interest therein." Under the 8th heading, " Inheritance upon the death of both of us," the testators gave the following among other directions: " The 'Synagogue' and 'Barandeniya Cottage' in Colpetty to vest in Edwin." By the 9th clause, under the heading " Restrictions on the above inheritance," the testators direct that certain of the premises, including the "Synagogue,". " shall not be sold, or in anywise alienated or encumbered, but shall devolve respectively on the lawful heirs of the above-named devisees; in the absence of any such lawful heirs, on the persons whom we institute heirs or his or her lawful heirs." The 10th clause contains an institution of heirs, of whom Edwin is one. The testator died in 1878, and the testatrix in 1907. After the death of the testarix, the first plaintiff, as the surviving spouse of Edwin, instituted an actio

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